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Reflections and Resources on Religious Liberty and the First Amendment

The Supreme Court’s recent ruling in the important controversial case Masterpiece Cakeshop v. Colorado Civil Rights Commission invites us to think about religious liberty and its place among American principles and in American history. Below, we offer a some reflections on the significance of religious liberty to the American political tradition, as well as a collection of our Fellows’ scholarly and popular publications on the Masterpiece Cakeshop case and related themes: religious liberty, freedom of speech, and marriage and the family.

Religious Liberty in the American Political Tradition

Freedom of conscience is at the heart of the American way of life. The free exercise of religion is of course protected in the Constitution’s First Amendment. Beyond that, it is the reason why so many came to these shores, beginning in our earliest days and after many centuries of religious wars and persecution in Europe. The American colonies provided safe harbor to fleeing Puritans, Catholics, and Portuguese and Spanish Jews.

In 1790, George Washington explained to the new republic’s religious minorities that they were welcome in this country. To the Jewish community he famously wrote, “May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants—while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”

Upon visiting the American republic in its early days, Alexis de Tocqueville remarked on Americans’ evident religiosity, and the importance of their religion in inculcating virtue and political habits important for a well-functioning democracy.

Because freedom of conscience and the free exercise of religion are so important to the character of America, there are many examples in U.S. history of religious groups being granted exemptions from laws when their convictions and the law conflict. Examples of such religious accommodation include the allowance of sacramental wine during Prohibition; permitting Amish families to prevent their children from attending high school; and making it possible for Jewish shopkeepers to operate businesses on Sundays despite Blue Law restrictions. Some of these accommodations are the work of the courts; others the legislative process.

In other cases, the state has successfully limited religious practice. The Supreme Court has upheld legal prohibitions against polygamy and the sacramental use of narcotics, regardless of religious conviction. In Employment Division v. Smith (1990), the Court ruled that a law does not violate the Free Exercise Clause of the First Amendment if it is neutral to religion—if it does not unfairly take aim at a particular set of people or beliefs. This reasoning is in line with the parameters John Locke sets out in “A Letter Concerning Toleration.”

It is important to note that in the Smith case, both the Oregon state legislature and the U.S. Congress revisited the topic after the Supreme Court issued its decision and voted to grant exemptions to laws prohibiting the use of peyote for members of the Native American Church.

The form of government set up by our Constitution offers many avenues for defending America’s founding principles. As Alexander Hamilton reminds us in Federalist 84, defending liberty ultimately falls to “the general spirit of the people.” This is why educating about liberty is of vital importance.

Below is a summary of the case and academic resources on themes related to the First Amendment, religious freedom, and other topics related to the recent SCOTUS decision.

About Masterpiece Cakeshop v. Colorado Civil Rights Commission

In July 2012, same-sex couple Charlie Craig and David Mullins requested the services of Masterpiece Cakeshop in Lakewood, CO, to design a cake for their wedding. When the shop’s owner, Jack Phillips, declined their request on grounds of religious beliefs, the couple filed charges of discrimination with the Colorado Civil Rights Division under the Colorado Anti-Discrimination Act (CADA). Subsequently, Colorado’s Administrative Courts issued an order against Masterpiece Cakeshop, which was eventually affirmed by the Colorado Court of Appeals. At this point Phillips appealed the Colorado Courts’ decision in the Supreme Court.

The question before the Supreme Court when it heard the case in December 2017 was whether the anti-discrimination law compelling Phillips to make a cake violating his sincerely held religious beliefs violates either the Free Exercise or Free Speech clauses of the First Amendment. On June 4, 2018, the Supreme Court ruled in a 7-2 decision that the Colorado Civil Rights Commission violated the Free Exercise clause. This decision, however, focused on the relatively narrow issue of the manner in which the Colorado Commission decided the Masterpiece Cakeshop case and did not go so far as to decide whether the Commission could have legitimately compelled Phillips to serve the same-sex couple had it done so differently.

Specifically, the Supreme Court ruled that the Commission’s treatment of Phillips’s case’ “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.” This hostility was indicated by public statements of commissioners who “disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” The Court also noted that Commission treated the Phillips case differently from other similar cases that did not involve a religious claim. In sum, the Court ruled that the Commission failed to maintain a “neutral” stance on religion in its treatment of discrimination cases.